Stepping into Canada's Shoes: Tsilhqot'in, Grassy Narrows and the Division of Powers

McIvor, Bruce, Gunn, Kate, University of New Brunswick Law Journal

I. INTRODUCTION

The Tsilhqot'in and Grassy Narrows decisions represent an about-face in the Supreme Court's approach to the constitutional division of powers. (1) Prior to 2014, the Court consistently confirmed the continuing relevance and importance of the doctrine of interjurisdictional immunity in regards to section 91(24) of the Constitution Act, 1867 and the federal Crown's responsibilities with respect to Aboriginal and treaty rights. (2) In Tsilhqot'in and Grassy Narrows the Court disregarded existing law and dramatically reduced the federal government's role when a province proposes to undertake activity that could negatively affect Aboriginal and treaty rights. The Court held that it is now open to provinces to consult and attempt to justify infringements of those rights pursuant to the Sparrow/Badger analysis. The potential ramifications of the Court's departure from established case law are considerable. The decisions call into question the Court's approach to the division of powers by reducing an established aspect of constitutional protection formerly guaranteed to Indigenous Peoples. As a result, provinces now have significantly expanded jurisdiction to make decisions which impact Aboriginal and treaty rights.

This paper provides an analysis of the current state of the law on the division of powers as it relates to the protection of Aboriginal and treaty rights. Part One outlines the law in respect of section 91(24) and the operation of the doctrine of interjurisdictional immunity prior to 2014. Part Two provides an overview of Tsilhqot'in and Grassy Narrows, with a focus on the division of powers in relation to federal authority pursuant to section 91(24). Part Three analyzes the implications of the province's significantly expanded jurisdiction since Tsilhqot'in and Grassy Narrows to infringe Aboriginal and treaty rights.

II. DIVISION OF POWERS PRIOR TO TSILHQOT'lN AND GRASSY NARROWS

Prior to the Supreme Court's 2014 decisions in Tsilhqot'in and Grassy Narrows a well-established body of case law confirmed the Court's long-standing approach to the constitutional division of powers and in particular federal responsibility for the protection of Aboriginal and treaty rights. The law was relatively settled--Canada bore exclusive responsibility for regulating Aboriginal and treaty rights pursuant to section 91(24) and the doctrine of interjurisdictional immunity operated to protect the federal government's exclusive role from provincial interference.

A. Exclusive Federal Jurisdiction pursuant to Section 91(24)

The federal government's exclusive role pursuant to section 91(24) to protect and regulate Aboriginal and treaty rights has deep roots in Canada's constitutional history and the federal Crown's unique relationship with Indigenous Peoples which predates confederation. Since the fall of New France, the British preferred to employ a single, uniform 'national' policy on issues related to Indigenous Peoples. The British had long believed that local non-Aboriginal legislative assemblies were adverse to Indigenous Peoples' interests and that 'settler majorities' in provincial legislatures would be tempted to run roughshod over Aboriginal rights and encroach on established reserves/ In its 1837 Report of the Select Committee on Aborigines (British Settlements) the English House of Commons reiterated the potential problem:

The protection of the Aborigines should be considered a duty
particularly belonging and appropriate to the executive government,
as administered either in this country or by the governors of the
respective colonies. This is not a trust which could conveniently
be confided to the local legislatures. In proportion as those
bodies are qualified for the right discharge of their proper
functions, they will be unfit for the performance of this office.
For a local legislature, if properly constituted, should partake
largely in the interests, and represent the feelings or the settled
opinions of the great mass of the people for whom they act. …

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